143 P. 124 | Utah | 1914
Tbe controversy on this appeal arose upon a petition filed in tbe probate division of tbe district court of Salt Lake County for final distribution of tbe estate of Maria Loomis Dewey, deceased. One Alma Andrews, a nepbew, and La-venia MeComb and Esmeralda McNeil, nieces of said decedent, filed objections to the final distribution as prayed for in tbe petition aforesaid, and asked that certain portions of said estate be distributed to them. The court sustained a general demurrer to tbe objections filed as aforesaid, and ordered said estate distributed as prayed for in said petition, and entered judgment accordingly, from which tbe objectors, hereinafter called appellants, prosecute this appeal.
Maria Loomis Dewey died, leaving a last will and testament. She also left surviving her quite a number of collateral heirs, all of whom are parties1 to this proceeding. Whether the judgment or decree of distribution appealed from should be affirmed or reversed depends upon the construction that should be given to certain portions of the decedent’s will. The will was duly admitted to probate, and the Hubbard Tuttle, Sr., mentioned in the will, hereinafter designated trustee, was duly appointed executor. Said trustee died before final settlement and distribution of the estate, and one Ammon Tuttle, son of the trustee, was duly appointed administrator with the will annexed, by whom the estate is represented in this controversy.
The testatrix, after directing the payment of her debts and other expenses, made the following bequests:
“2nd. That all debts and dues and demands of whatsoever kind or nature, due or to- become due to me, shall be collected and converted into money; and after all such debts as are collectible shall have been collected, and after all my debts, and the expenses of the administration of my estate are paid, I hereby request and direct that the following legacies shall be paid out of the remaining proceeds- of my estate, to-wit: First. To my niece Luella Dewey, the sum of $500. Second. To my niece Esmeralda McKell, the sum of $500. I further direct that if there shall not be sufficient funds to pay the above bequests in full, that the amount*101 applicable for that purpose shall be divided pro rata among said legatees; but if there should still remain a surplus after the payment of the aforesaid legacies in full, I request that the sum of $500 or such portion thereof as said surplus, if any, will pay, to be paid to Hubbard Tuttle, Sr. I further direct and request that my Paisley shall be given to Nellie C. Shurtleff, and that my fur cape be given to Ida Wooley. All the rest, residue and remainder of my property of every kind and nature whatsoever, if any, which remain after paying and discharging all the debts, bequests, legacies, and obligations hereinbefore- mentioned and provided for, I hereby give, devise and bequeath to the said Hubbard Tuttle, Sr. It is my desire that he shall- distribute the same, or the proceeds thereof, among my nephews and nieces, and to such of them, and in such proportions, as he shall deem just and proper, and his decision upon such matters shall be final, conclusive and binding upon all parties.”
The testatrix then nominated said trustee as executor.
The administrator, hereinafter called respondent, contends that by the terms of said will the testatrix devised and bequeathed the whole residue and remainder of said estate to said trustee to have and to hold in his own right, while the appellants contend that said residue and remainder was given to said trustee in trust to be by him distributed as in said will directed. The question we must determine, therefore, is whether the contention of respondent or that of appellants should prevail.
“Implied trusts are tliose tliat arise when trusts are not directly or expressly declared in terms, but the courts, from the whole transaction and the words used, imply or infer that it was the intention of the parties to create a trust. Courts seek for the Intention of the parties, however informal or obscure the language may be; and, if a trust can fairly he implied from the language used as the intention of the parties, the intention will, he executed through the medium of a trust. Implied trusts may arise out of agreements and settlements inter vivos where there is a sufficient consideration; hut they more frequently arise from the construction of wills where a consideration is implied. In Pennsylvania, such words as ‘my wish is,’ ‘my further request is,’ or other words merely expressive of a desire, recommendation, or confidence, are not sufficient to convert a devise or bequest into a trust. But the general rule is that if a testator make an absolute gift to one person in his will, and accompany the gift with words expressing a ‘belief,’ ‘desire,’ ‘will,’ ‘request,’ ‘will and desire,’ or, if he ‘will and declare,’ ‘wish and request,’ ‘wish and desire,’ ‘entreat,’ ‘most heartily beseech,’ ‘order and direct,’ ‘authorize and empower,’ ‘recommend,’ ‘hope,’ ‘do not doubt,’ ‘be well assured,’ ‘confide,’ ‘have the fullest confidence,’ ‘trust and confide,’ ‘have full assurance and confident hope’; or, if he make the gift ‘under the firm conviction,’ or ‘well knowing’; or, if he use the expression, ‘of course the legatee will give,’ or, ‘in consideration that the legatee has promised to give’ — in these and similar cases courts will consider the intention of the testator as manifestly implied, and they will carry the intention into effect by declaring the donee or first taker to be a trustee for those whom the donor intended to benefit.”
In 1 Jarman, on Wills (6th Ed.), star page 355, it is said:
“For technical language, of course, is not necessary to create a trust. It is enough that the intention is apparent.” ■
“But a ‘will’ is something imperative even though the testator should choose to employ some softer word to denote it. Doubtless his true intention, as the context may indicate, will operate in the details of the disposition; as in determining whether a party named in the will shall absolutely or at his own discretion perform a certain duty or appropriate a certain fund. But, generally speaking, where property is given by testament to some person, who is recommended, requested, or wished, to dispose of it after a certain manner, this wish, request, or recommendation is commonly considered imperative and equivalent to creating a trust. And as for the will, the testamentary disposition itself, its natural operation, is absolute and imperative, though never so gently expressed; for such an instrument as a will, whose sanction rests upon the arbitrary discretion of a court or surviving individual, which prays instead of declaring a devolution of title, is almost unheard of, and never to be favored by construction.”
Tbe editors of Hill on Trustees (4tb Am. Ed. 73), after an examination of tbe American and English cases, have deduced tbe following rules upon tbe subject now under discussion, to-wit:
“1. Precatory words in a will, equally with direct fiduciary expressions, will create a trust; the wish of a testator, like the request of a sovereign, is equivalent to a command.
“2. Discretionary expressions, which leave the application or nonapplication of the subject of the devise to the objects, contemplated by the testator entirely to the caprice of the devisee, will prevent a trust from attaching; but a mere discretion in regard do the method of application of the subject, or the selection of the object, will not be inconsistent with a trust.
“3. Precatory words will not be construed to confer an absolute gift on the first taker, merely because of failure or uncertainty in the object or subject of the devise.
“4. But failure or uncertainty will be an element to guide in construing words of doubtful significancy adversely to a trust.”
See 1 Perry on Trust and Trustees, pp. 161-162. See, also, upon this subject Warner v. Bates, 98 Mass. 274; Colton v. Colton, 127 U. S. 300; 8 Sup. Ct. 1164; 32 L. Ed. 138; Knox v. Knox, 59 Wis. 172; 18 N. W. 155; 48 Am. Rep. 487; Williams v. McKinney, 34 Kan. 514; 9 Pac. 265; Read v. Patterson, 44 N. J. Eq. 215-219; 14 Atl. 490; 6 Am. St. Rep. 87; Lippincott v. Ridgway, 10 N. J. Eq. 164; Cameron v.
There are likewise a number of cases wherein a stricter rule respecting the creation of implied trusts is laid down, but it is not necessary to refer to those cases here. A large number of cases will be found collated in the briefs of counsel. Indeed, many of the cases, cited by counsel for appellant are in entire harmony with those cited above.
“On the one hand, the words may he merely those of suggestion, counsel, or advice, intended only to influence, and not to take away, the discretion of the legatee growing out of his right to use and dispose of the property given as his own. On the other hand, the language employed may be imperative in fact, though not in form, conveying the intention of the testator in terms equivalent to a command, and leaving to the legatee no discretion to defeat his wishes, although there may be a discretion to accomplish them by a choice of methods, or even to define and limit the extent of the interest conferred upon his beneficiary.”
In referring to- tbe class of trusts we are now discussing, that is, the class in which a power of exercising a discretion is vested in the trustee by the testator respecting the selec
“In this class of trusts the discretionary power of the trustees is limited to the selection of individuals as the objects of the trust from the class indicated, or the distribution of the estate amongst the objects of the trust. Where property is left in trust to a class of individuals, as the children, or the nephews and nieces of the testator, and the trustees are authorized to appoint to one or more, as they shall see fit, from this class, and the trust is administered, the individuals appointed will take the estate to the exclusion of all the other individuals of the class, and the rule will apply where the trustees are empowered to determine the relative proportions to be received by the individuals, or to fix the time and manner in which the shares of the estate shall be distributed. But where, for any reason, the discretionary power is not exercised, the entire class of the objects of the trust will be entitled to the property, and they will share and share alike.”
In Brosseau v. Dore, 35 Can. Sup. Ct. 205, it is said:
“A devise in a will directing the distribution of the residue of the testator’s estate among his brothers and sisters or nephews and nieces who should be most in need of it, at the discretion of the trustee named therein, is valid, and confers absolute power upon the trustees of selecting beneficiaries from the classes of persons mentioned.”
See, also, upon this question tbe New Jersey eases above cited.
“Generally, if the power is left unexecuted hy the donee, the court will execute it as a trust, hy dividing the fund eQnally among the objects or persons in favor of whom it was given, or from whom the selection might have been made, on the ground that equality is equity. But if the donor of the power lays down any rule hy which the donee is to he governed in his selection and distribution of the fund, it is said the court will place itself in the position of the trustee.”
In 1 Beach on Trusts-and Trustees, section 263, the rule is stated thus:
“Where a power is of such a character that the donee is authorized to dispose of the property among the individuals of a designated class, and is clothed with some discretion in regard to the manner of the distribution, equity will not interfere with his execution of the power. But if the donee for any reason fails to act and the property is not divided, equity will interpose in favor of the beneficiaries by treating it as a power in trust and enforcing its execution. In such cases the distribution by the court will be to all the individuals of the class designated and in equal sums.”
See the quotation from 2 Beach on Trusts and Trustees, supra. See, also, Cameron v. Crowley, supra, where the doctrine is illustrated and applied. In the last case referred to the trustee attempted to make a distribution which was contrary to the provisions of the will, and the court held it invalid and ordered a distribution in consonance with the rule just stated.
In the ease at bar the trustee, under the provisions of the will, could have executed the trust by making an equal division of the residue of the estate among all of the nephews and nieces, excluding himself, and therefore a court of equity-may do so.
Before concluding- this opinion we desire to say that we have not overlooked the argument of counsel for respondent in which they vigorously insist that to- hold that the language used by the testatrix in this case created a trust will establish a dangerous precedent, in that it may result in declaring all words of entreaty or desire as trusts, and thus
There are some other matters relating to the collection of some notes and the preservation of some of the property of the estate referred to in appellants’ objections. These matters we do not consider, since the district court has full power and no doubt will exercise it if necessary to require the administrator to collect and account for all the property belonging- to the estate and produce it when required to do so.
It is therefore ordered that the judgment of the district court of Salt Lake County be, and the same hereby is, reversed and vacated; that this case be remanded to said district court, with directions to enter a decree of distribution of the estate in accordance with the views herein expressed. Costs upon this appeal to be paid out of the assets of the estate.